LEGAL ISSUES ON BURMA JOURNAL No. 8, APRIL 2001 
BURMA LAWYERS' COUNCIL


New Lawsuit against Daw Aung San Suu Kyi: 
Hidden Agenda?

B.K. Sen and Khin Maung Win*

The new lawsuit that U Aung San Oo has filed against Daw Aung San Suu Kyi is a suit filed after the Court had dismissed the first suit for inheritance. The defect in the earlier suit apparently has been taken care of. But it will have to go through rough water. Section 6 of the “Transfer of Immovable Property Restriction Law” of 1987 reads “(...) when any person leaves Myanmar for good (...), the Ministry concerned may after scrutiny case by case in respect of the immovable property owned by that person, carry out in conformity with the procedures as follows: (a) allowing right of inheritance in accordance with law; (b) confiscating by the State”. Section 7 of the Law reads, “If the Ministry concerned decides to allow right of inheritance under subsection 6, as to who should inherit the immovable property shall be by consensus of the heirs or by the decision of the Court in accordance with the relevant succession law”.

Under this provision a foreigner is barred from putting up claims to property which has devolved on him upon the death of his parents. He can only do so when the government gives him permission to put a claim, and, if necessary, to establish it in a Court of Law. In the instant case U Aung San Oo must have approached the Home Ministry, which in this case is the competent authority, for requisite permission and he was readily obliged. Instead, the Ministry could have withheld the allowing the right of inheritance and referred the parties to reach a consensus first.

Daw Aung San Suu Kyi in all probability would have agreed to an out of court settlement. But that would have defeated the political purpose at issue. This exercise of the power to refer to the decision of the Court, to say the least, is a gross abuse of Law. It is discretionary, as the section itself says, that after scrutiny case by case, decision will be made. The action that followed by the State is interference by the State in family affairs. A foreigner has been given favour against a citizen who is the daughter of General Aung San, the father of the nation. The foreigner, ironically, is one who renounced the citizenship bestowed on him by his legendary father. Unmistakable, the victim of the permission is the acclaimed leader Daw Aung San Suu Kyi, who is engaged in mortal political combat with the authority that has given the permission to sue her. The criteria for giving permission are the matter being bona fide, there is a prima facie case and there is public interest.

First, the so-called permission does not meet any of the aforementioned criteria. The matter is patently mala fide for reasons stated, and made clear by the ongoing confrontations between the givers and victim of the permission. The fact that the victim is under house arrest makes it clear that the permission givers are persons interested and clearly disqualified to exercise the power of giving permission. It is a case where judge and prosecutor are one.

Second, there is no prima facie case to give the permission. In the earlier case the Home Ministry had given exemption enabling U Aung San Oo to file the suit even though there was no prima facie case. The very fact that the case was dismissed on a preliminary point showed the suit not being maintainable. It proved to be disgraceful that the Home Ministry's order ended in disrespect. Prima facie the case is untenable on cogent legal grounds. The suit is barred under the principle of res judicata. It says that no second suit is entertainable on the same cause of action once it is dismissed. In the first case the cause of action was inheritance of the mother's property. It is the same in the second case. What should have been done was to ask for amendment of the plaint in the first suit or, alternatively, ask for withdrawal of the suit with liberty to file a fresh suit. U Aung San Oo did not do either and gave his sister a leeway to extricate her from the trap laid.

Third, there is another flaw in the present suit. U Aung San Oo's mother died in December 1988. The present suit was filed in April 2001, after 12 years! The suit will be barred by Law of Limitation. The power given to the Court to extend time is not applicable in this case. If it is exercised, however, it will be yet another abuse of Law. The Court has framed two preliminary issues since Daw Aung San Suu Kyi filed her objections, namely 1. Whether the suit is barred by Law of Limitation; 2. Whether a foreigner has the right to file the suit. After hearing the arguments of both sides, the court will have to pass order and hopefully this will be dismissal of the suit as in the previous case.

However the disturbing factor is the role that the Ministry has played in allowing Right of Inheritance to be brought to Court. This role has sent a wrong message and it is a retrograde in the process of confidence building, which is so important in the ongoing talks between the SPDC and opposition leader Daw Aung San Suu Kyi. Some may even say that it is a provocative act. Obviously Burma is going through a painful process of transition; conflict resolution seems far away. Perhaps it is the birth pang of a new order which has no time frame.


Endnote

* The authors are Executive Committee Members of Burma Lawyers’ Council.